BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
The Waterboy promo – nudity – incorrect classification – broadcaster not mindful of effect of broadcast on children

Findings
Standard G2 –context – no uphold

Standard G8 – G rating correct – no uphold

Standard G12 – correct classification and time of broadcast – no uphold; standard G22 – G rating correct – no uphold

Standard G24 – not relevant

This headnote does not form part of the decision.

Summary

[1] A promo for the movie The Waterboy was broadcast on TV3 on 19 October 2001 at 6.40pm, during a broadcast of 3 News.

[2] Michael Hooker complained to TV3 Network Services Ltd, the broadcaster, that the promo showed one of the characters featured in the movie "pull[ing] down his trousers and exposing his buttocks".

[3] TV3 declined to uphold the complaint. It considered that the promo had been appropriately classified and was acceptable for screening during a news programme broadcast in G time.

[4] Dissatisfied with TV3’s decision, Mr Hooker referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given, the Authority declines to uphold the complaint.

Decision

[5] The members of the Authority have viewed a tape of the promo complained about and have read the correspondence listed in the Appendix. The Authority determines this complaint without a formal hearing.

The Programme

[6] A promo for the movie The Waterboy was broadcast on TV3 on 19 October 2001 at 6.40pm, during a broadcast of 3 News. During the promo, the character played by Henry Winkler pulled down his trousers and exposed a tattoo on his buttocks.

The Complaint

[7] Michael Hooker complained to TV3 about the nudity in the promo.

[8] Mr Hooker considered that TV3 had screened AO material in a G timeband. To support this contention, he referred to Decision No: 1995-022, in which he said the Authority held that a black and white still photograph of a naked man viewed from behind was on the borderline between AO and PGR material.

The Standards

[9] Mr Hooker asked that his complaint be assessed under standards G2, G8, G12, G22 and G24 of the Television Code of Broadcasting Practice. The first three of those standards require broadcasters:

G2  To take into consideration currently accepted norms of decency and taste in language and behaviour, bearing in mind the context in which any language or behaviour occurs.

G8  To abide by the classification codes and their appropriate time bands as outlined in the agreed criteria for classification.

G12  To be mindful of the effect any programme may have on children during their normally accepted viewing hours.

[10] The remaining standards provide:

G22  Promotions (promos) for AO programmes may be screened during PGR or G time bands provided the promo is made in such a way that it can be classified as PGR or G, as appropriate. Promotions which carry an AO classification may only be screened within AO time bands.

G24  Broadcasters must be mindful that scenes containing incidents of violence or other explicit material may be acceptable when seen in the total context of a programme, but when extracted for promotion purposes such incidents will be seen out of context and may thereby be unacceptable, not only in terms of the codes but also for the time band during which the trailer is placed.

TV3’s Response to the Complaint

[11] TV3 declined to uphold the complaint. In relation to the standard G2 aspect of the complaint, it maintained that:

the brief vision of Mr Winkler’s bottom was not indecent or sexualised, or PGR or AO in nature.

[12] TV3 then explained that the clip had been included in the promo to show the character’s tattoo – which his mother told him not to get. It said:

there can be a vast difference between the acceptability of similar footage because of the context.

[13] TV3 considered that standard G8 had not been breached, as the promo had been correctly rated G. It commented that "innocent" nudity in G time had been "ruled acceptable" many times by the Authority, and gave examples from the Authority’s previous decisions to support this contention.

[14] According to TV3, standard G12 had not been breached. The broadcaster said it had been conscious of child viewers. It reiterated that the material about which Mr Hooker had complained was non-sexual and not inappropriate for children to view, and that it had further demonstrated that it was mindful of the effect of the promo on children by excluding the promo from playing in G programmes aimed at children.

[15] TV3 maintained that the remaining standards had not been breached as the promo had been correctly classified and had screened in an appropriate programme (standard G22) and it could not find any "explicit material" in the promo (standard G24).

Mr Hooker’s Referral to the Authority

[16] In his referral to the Authority, Mr Hooker said:

The essence of TV3’s response was that the promo was acceptable in a G timeband only because it was not screened during a programme aimed at children, ie the News. TV3’s response gives the strong impression that TV3 agree the promo would be inappropriate in a G timeband if screened during a programme intended for children.

[17] Mr Hooker also challenged the relevance of the decisions which had been raised by TV3 in support of the broadcaster’s argument.

The Authority’s Determination

[18] When it determines a complaint about whether a broadcast contravenes standard G2, the Authority is required to determine whether the material complained about breached currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but not decisive, to the Authority’s determination of whether the programme breached standard G2. Accordingly, the Authority has considered the context of the promo.

[19] The Authority considers that relevant contextual matters include the promo’s G rating and its broadcast in the G time band during a broadcast of 3 News. The Authority also considers it relevant that it was explained during the promo that the tattoo was shown to illustrate that the character played by Henry Winkler had been told not to get a tattoo by his mother, but had done so anyway. The Authority accepts TV3’s contention that the material was neither sexual nor otherwise inappropriate for children. Having considered the contextual matters referred to above, the Authority concludes that the material Mr Hooker complained about did not breach standard G2.

[20] Standard G8 requires broadcasters to abide by the classification codes and their appropriate time bands. Similarly, standard G22 requires that a promo which is screened during a G timeband must be made in such a way that it be classified as G. In this case, the Authority considers that the promo was correctly classified as G material and was screened at an appropriate time. Accordingly, it finds that principles G8 and G22 were not breached.

[21] In relation to standard G12, the Authority agrees with TV3 that it was conscious of child viewers as the material was non-sexual and not inappropriate for children and was not shown during the broadcast of G programmes which were aimed at children. It also considers it relevant that TV3 correctly applied a G certificate to the promo and excluded it from broadcast during G programmes aimed at children. Accordingly, the Authority declines to uphold this aspect of the complaint.

[22] As to standard G24, the Authority does not regard this standard as relevant to the complaint, as it does not consider the material Mr Hooker complained about in the promo constituted violent or explicit material.

[23] The Authority observes that to find a breach of broadcasting standards would be to interpret the Broadcasting Act 1989 in such a way as to limit the broadcaster's statutory freedom of expression in s.14 of the New Zealand Bill of Rights Act 1990 in a manner which is not demonstrably justifiable in a free and democratic society (s.5 of the Bill of Rights). As required by s.6 of the Bill of Rights, the Authority adopts an interpretation of the relevant standards which it considers is consistent with the Bill of Rights.

For the above reasons, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
21 March 2002

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1. Michael Hooker’s Formal Complaint to TV3 Network Services Ltd – 3 November 2001
2. TV3’s Response to the Formal Complaint – 4 December 2001
3. Mr Hooker’s Referral to the Broadcasting Standards Authority – 21 December 2001
4. TV3’s Response to the Authority – 14 January 2002
5. Mr Hooker’s Final Comment – 28 January 2002